1.
INTRODUCTION

1.1 The meaning of the term
shared stocks

The terms of reference for this report are in Annex I. The
term shared stocks needs definition for the purposes of this report.
In principle, a shared stock could be one that was shared between
inter alia (a) two neighbouring coastal States, (b) two non-neighbouring
coastal States on opposite sides of a gulf or ocean or (c) a coastal State and a
flag State (the latters vessels fishing on the high seas). Some clarity is
therefore needed.

The 1982 Convention on the Law of the Sea (LOSC)
does not use the term shared stocks. Instead, Art 63 LOSC refers
to:

(a) the same stock or stocks of
associated species occur[ring] within the exclusive economic zone of two or more
coastal States (Art 63(1)); and

(b) the same stock or stocks of associated species
occur[ring] within the exclusive economic zone and in an area beyond and
adjacent to the zone (Art 63(2)).

Article 63 addresses the problems posed by what
are commonly called transboundary stocks and straddling
stocks, that is, respectively, stocks which occur within the
exclusive economic zone of two or more coastal states, and stocks which occur
both within and beyond the exclusive economic zone of a single coastal
State.[2]

Thus in their view the term transboundary stocks
refers to Art 63(1) stocks, while the term straddling stocks refers
to Art 63(2) stocks. The FAO Code of Conduct for Responsible Fisheries seems to
take a slightly different view. Thus paragraph 7.1.3 of the Code states
that:

For transboundary fish stocks, straddling fish
stocks, highly migratory fish stocks and high seas fish stocks, where these are
exploited by two or more States, the States concerned, including the relevant
coastal States in the case of straddling and highly migratory stocks, should
cooperate to ensure effective conservation and management of the resources. This
should be achieved, where appropriate, through the establishment of a bilateral,
subregional or regional fisheries organization or
arrangement.[3]

For the Code of Conduct to be consistent with Nandan, Rosenne
and Grandy, it should logically have included transboundary fish stocks in the
reference to relevant coastal States.

The term shared stocks for the purpose of this
report will be taken as meaning stocks occurring in the waters of two or more
neighbouring coastal States (whether adjacent or opposite neighbours) but not
ranging onto the high seas.

1.2 The legal regime for management of
shared stocks

For a stock shared between two or more neighbouring coastal
States and not ranging onto the high seas, the regime of Art 63(1) LOSC is
appropriate. It states that:

Where the same stock or stocks of associated
species occur within the exclusive economic zones of two or more coastal States,
these States shall seek, either directly or through appropriate subregional or
regional organizations, to agree upon the measures necessary to coordinate and
ensure the conservation and development of such stocks without prejudice to the
other provisions of this Part.

Regarding the term development, Nandan, Rosenne
and Grandy[4] state that:

The reference to development...
relates to the development of those stocks as fishery resources. This includes
increased exploitation of little-used stocks, as well as improvements in the
management of heavily-fished stocks for more effective exploitation. Combined
with the requirement in article 61 of not endangering a given stock by
overexploitation, this envisages a long-term strategy of maintaining the stock
as a viable resource.

Thus Art 63(1) imposes a duty to seek... to agree
measures to inter alia ensure the conservation and development of such
stocks. Burke states colourfully that [t]he substantive obligation imposed
by Article 63(1) cannot fairly be described as awesome, imposing, or, even,
perhaps, very consequential. Churchill and
Lowe[5] observe that [n]othing... is
said... about management objectives or allocation of the catch among interested
States, which are the kinds of things that the States concerned need to agree on
if there is to be effective management of shared stocks.

The provisions of the LOSC on marine scientific research are
potentially applicable to the management of shared stocks (see inter alia
Arts 246(3), 246(5)(a) and 249 LOSC). The Code of Conduct, though not a binding
instrument, is also relevant through both its provisions on fish stocks
generally and those more specifically aimed at shared stocks (see paragraphs
7.1.3 [cited above], 7.3.2 and 12.17).

1.3 Management arrangements considered
in this report

This report considers 39 arrangements. The arrangements have
been chosen on the basis that: (a) they are arrangements for the management of
shared stocks; or (b) the management structure they provide could easily be
transferred to shared stocks.

The working definition of fisheries management used in this
report is that used in the FAO Technical Guidelines for Responsible Fisheries
No.4:[6]

The integrated process of information
gathering, analysis, planning, consultation, decision-making, allocation of
resources and formulation and implementation, with enforcement as necessary, of
regulations or rules which govern fisheries activities in order to ensure the
continued productivity of the resources and accomplishment of other fisheries
objectives.

Thus some of the arrangements have as their focus conservation
and management and others monitoring, control and surveillance.

Annex II contains a summary of each of the 39 arrangements,
each summary using standardised headings. The analysis in section 2 of this
report is based on these summaries. The 39 arrangements have been selected from
a larger pool, discovered by a literature search, an internet search and casual
enquiries. (Annex II lists the arrangements in this larger pool, and Annex III
contains the references cited in this report and in Annex II.)

The summaries in Annex II, and the analysis that follows, are
based on the various arrangements as they are on paper. Commentaries from the
literature (or feedback from individuals) have been used to add to some
summaries, but this is the exception rather than the rule. Where the analysis
that follows identifies strengths and weaknesses, these are based on the
arrangement as it appears on paper, rather than as it actually works on
the ground. A strength on paper could be a weakness in practice; a
weakness on paper could be a strength in practice.